Saturday, August 01, 2009

HR 3200 end of life counseling provision: paid service or mandate?

That seems to be the question du jour concerning the health care reform bill. Although the notion (advanced by Betsy McCaughey and others) that the bill would require seniors to undergo counseling has been characterized as a wingnut lie, when I went and read the relevant section of the original bill (pages 425-430) things got really muddy. After reading and re-reading I just couldn't be sure who's lying, who's telling the truth and who's just plain confused. I'm nowhere near as smart as some folks on both sides of the issue who seem so sure so I thought I'dask Fred Thompson. After all he's a former senator and a lawyer, and McCaughey made the claim on his show. I wrote to him, in part, concerning the bill:

The language is arcane. It amends and makes reference to portions of the Social Security act which I was unable to access. That said, to my reading it merely adds such counseling as a covered service but does not mandate it. Do you really believe it will force elders to engage in such counseling? Alternatively, is the language so vague that we really can't anticipate how it will be interpreted? I would appreciate it if you would help me and some of my blogging colleagues work through the legalese. Thanks!

In the meantime, while I waited for Fred's reply (and I'm still waiting) a commenter tipped me off to theseposts by Wesley Smith at Secondhand Smoke. Concerning McCaughey's claim he wrote:

Is she right? It is very hard to tell. That section of the bill refers to existing law without quoting it.

And, a little further on:

Here’s the thing: I’m a lawyer and I couldn’t figure out what this section of the bill would actually require because it refers to existing laws, and to look up and cross reference those against the bill would require hours to figure out. That in itself should send up warning flares. From what I have seen, this bill is simply incomprehensible.

It is urgent that our representatives slow down, figure out what these bills really contain, and let the people weigh in before the legislation is finally decided upon. That the President of the United States, the Speaker of the House of Representatives and others in political leadership want to deny us that opportunity tells me this bill is toxic–and on that basis alone, it should be rejected unless sufficient time is allowed to permit the democratic process to operate in a proper fashion.

So Smith, a lawyer and an expert in bioethics no less, shares my confusion! At the very least we need time for the representatives and the American public, particularly seniors, to understand the provision. Maybe, as Smith suggests, the language of the bill needs some tweaks to make it abundantly clear that the counseling would be voluntary and without coercion:

Regardless, if mandatory counseling is not what the president and Congress really have in mind, it would be very easy to correct any confusion:

1. Add a provision stating that the counseling is entirely voluntary–both for the patient and the medical provider. In that way, the regulations–that will be thousands of more pages–promulgated by the agencies to further the purpose of the law won’t be able to require counseling.

2. Add a provision stating that the patient will not lose benefits if he/she refuses counseling or does not sign an advance directive.

3. Add a provision that no service provider will lose compensation for not providing counseling.

4. Add a provision prohibiting the counseling from being directed toward refusing or accepting care–along the same lines of the Kennedy/Brownback bill passed last year to prevent genetic counseling of pregnant women carrying a Down baby from being directed toward abortion.

All the ambiguity aside Smith did cite some concerning language in the provision (italics added):

Such consultation shall include the following:

and---

The Secretary shall limit the requirement for explanations under clause...

OK, maybe the imperative words here merely refer to coding requirements in order to get reimbursed for the counseling, but who knows?

I'm reading cocksure opinions, from folks on both sides of this debate, not wingnut lies. It's refreshing to see a nuanced analysis such as Smith's, and I hope he stays on top of the issue.

6 comments:

Anonymous
said...

Please do your readers a favor and actually read the proposed legislation, and the original provision of the Social Security Act to be amended. It's not that difficult to find.

Although one could question the need to include the proposed amendment in the comprehensive health care reform package, it is quite benign. The effect of the amendment is to add "end of life counseling" to the list of services eligible for Medicare reimbursement. Federal law already encouraged such counseling, but did not allow Medicare providers to receive compensation -- so, if the law passes, a counseling session will be assigned a reimbursement code, and the Medicare provider will receive payment (although it is unclear what that amount will be). The other lie being perpetrated by opponents of reform is that the counseling has to occur every five years; that is not the case. Instead, the Medicare provider may not receive payment for such counseling more than once every five years.

State and federal laws already prohibit euthanasia and assisted suicide, and there is nothing in any of the reform legislation packages that would change these laws. Please do your research and stop scaring our parents and grandparents.

Why not, instead, focus on the so called "health care choice" legislation -- being advanced by insurers, it would allow health care insurance to be sold across state lines and exempt the insurers from having to comply with consumer protection laws of any state that is not their primary state. (This is very easy to verify -- check the "disclaimer" language that the laws would require insurers to include in the insurance contracts.) The practical effect of this legislation is to allow insurers to become licensed in a state with minimal consumer protections; that state would serve as the company's primary state. From there, the insurer will be able to sell insurance in other states without having to comply with the consumer protection laws in those other states. The law purports to give consumers a choice, but really give all the choice to the insurers.

If you read this bill (HR3200) you will see that it is not mandating that the government provide you with healthcare. It creates an insurance exchange where you can purchase all the same insurance you have access to now and you will have the option of selecting a public option. All of the insurance plans that are purchased through the exchange will have specific protections for the insured. You can not be denied coverage for preexisting conditions. You can not be dropped from coverage for getting sick or injured. If you read the bill you will learn all of these details and more. In addition, the public option will be very similar to Medicare. The public option is an insurance plan, not government run healthcare. The public option will pay the providers the same way that the existing insurance companies and Medicare do.Again, read the bill.

Dear Anonymous, I have read section 1233, and have looked at the Social Security Act referenced, and as a lawyer I have to say, it is as clear as mud whether these end-of-life consultations will end up being deployed as mandatory. Laws do not appear in a void; they have a context of implementation. That is why it is always imperative to see how similar legislation has played out in the round. There is simply no way to know for certain based on language alone. The “voluntariness” of any given provision may prove illusory as it transitions from words on paper to a living reality in practice.

For example, Illinois’ Department of Family and Child Services is notorious for taking voluntary provisions and transforming them to have coercive effect, in clear violation of the spirit, if not the letter, of the law. A child’s placement into foster care is theoretically “voluntary,” but if the suspect parents do not cooperate, neglect proceeding will ensue. The choice becomes illusory, especially for the weak and defenseless.

As another example, in the Netherlands an abstract, government-granted “right” of self-termination has become progressively more coercive over time, as the culture transforms from one where euthanasia moved from exception to cultural norm. Once such a practice becomes part of the culture, it becomes very difficult to displace, and much more difficult for the unwilling to resist.

Think about it this way. Clever social programmers are not unlike clever computer programmers. They have a comprehensive grasp of how all the layers of a system interact in real life and over time. It is not always desirable to program for a direct effect, especially if there is a defense the system you are trying to circumvent. If you are a virus writer, you want to lay down code primitives that appear relatively innocuous to those defense systems, but which, when taken up in a later context, will assemble to code that harms the system.

So yes, we do have direct laws inhibiting the practice of euthanasia. So? If you believe in euthanasia, as is the case with Zeke Emanuel et al, then you code around those laws using no direct assault. You set up an incentive system, i.e., reimbursement for end-of-life counseling, to work in passive conjunction with star chamber shadow figures rationing treatment based on “complete lives” efficiency models, with the effect that government doctors are motivated to push weakened patients into planning for crossing that board-certified efficiency threshold, where the cost of sustaining their life will outweigh the relative value of their life. Nietzsche would be so proud.

Furthermore, failure to provide such consultation could result in patient’s families suing doctors for not preparing grandma and grandma’s family for the trauma of the plug pulling-ceremony. Doing these consultations would become the new standard of care, thus a necessary defense against malpractice, and doctors would become reluctant to continue with patients who were not cooperative in protecting the doctor from liability. Which is, perhaps, why tort reform is not part of this package. The clever coders have need of the incentive of fear of litigation to keep doctors motivated to act defensively and therefore very predictably. Extortion works.

The absence of explicit mandatory language is therefore not dispositive proof that a statute will not be taken as a mandate. It would be somewhat better if explicit “voluntary” verbiage were added, along with disincentives to indirect coercion. However, I have recently learned that such clarifying language was offered and was solidly rejected. This betrays the hidden cards. The crafters of this bill must keep closed any exits that might derail this “virus” from reaching its true objective, which is to create an illusory choice with only one socially, medically, and economically acceptable outcome for the disfavored: Do you want your pain pill now or later.

Section 1233 is adding things and defines(hhh(4)) what is meant with “Advanced Care. When you use the word “shall” in a regulatory document then all these things are required to be covered. So if Grandma wants to JUST talk about a living will, Medicare will gladly pay for it as long and ONLY if all the areas are covered – including end of life, DNR’s and rest of list. Changing the word “shall” to “can” or “may” would completely fix this situation.

I do agree though that this is not mandatory counseling but again if Grandma wants to only talk about one aspect then only way Medicare will pay for it is if all the items are covered.